Terms & Conditions – Surf & Turf Instant Shelters Ltd

TERMS & CONDITIONS OF SALE

PLEASE READ CAREFULLY BEFORE PROCEEDING WITH YOUR PURCHASE:

This agreement is a legal agreement between you, the customer purchasing the Surf Turf Products and/or Services (“Customer”, “You” or “Your”) and Surf & Turf Instant Shelters Limited, a company registered in England and Wales with company number 05877935, whose registered office address is at C/O Afford Bond, 97 Alderley Road, Wilmslow, SK9 1PT (“Surf Turf”, “us” or “we”).  This Agreement relates to your purchase of Products and/or Services from our Website.

CUSTOMERS:

• BY CLICKING ON THE “COMPLETE PURCHASE” BUTTON YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU. THE TERMS OF THIS AGREEMENT INCLUDE, IN PARTICULAR, LIMITATIONS OF LIABILITY IN CLAUSE 17.

• IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU CANNOT COMPLETE YOUR PURCHASE.

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

• Definitions:

• Agreement: these terms and conditions, an Order, any Specification, completed Questionnaire and where applicable the Installation Works Schedule, along with any documentation expressly incorporated herein by reference.
• Bespoke Products: any non-standard products which the Customer instructs Surf Turf to produce for sale, including: (i) any Products which are subject to Custom Printing Services; and (ii) any oversized, non-standard shaped and/or customised Products.
• Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
• Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
• Commencement Date: has the meaning given in clause 2.
• Conditions: these terms and conditions as amended from time to time in accordance with clause 8.
• Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.
• Custom Printing Services: any custom printing services which the Customer may purchase from Surf Turf in respect of the Products in accordance with clause 4.
• Customer Marks: any trade marks, trade names, logos or branding of the Customer, as provided by the Customer to Surf Turf for display on Bespoke Products.
• Customer Materials: any information, data, graphics, photographs, documents and other materials provided by the Customer in a Questionnaire or in order for Surf Turf to produce a Specification or Design.
• Delivery Location: has the meaning given in clause 2.
• Design: has the meaning given in clause 1(c).
• Documentation: any user guides, brochures, online videos, manuals and other documentation (whether in printed or online form) describing the features and functionality of the Products, as made available by Surf Turf to the Customer and as updated from time to time.
• Force Majeure Event: has the meaning given to it in clause 20.
• Installation Works: any installation or other similar minor building works provided by Surf Turf as part of the Services where applicable, which shall be performed in accordance with the Installation Works Schedule.
• Installation Works Schedule: the Schedule to this Agreement which describes the Installation Works.
• Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
• Order: the Customer’s order for the supply of Products and/or Services, which the Customer places via the Website.
• Products: the Products (or any part of them) set out in the Order, including any Bespoke Products.
• Questionnaire: the pre-installation questionnaire which the Customer must complete if purchasing the Instashade Parasol and/or any other Products requiring Installation Works (as notified by Surf Turf), available at: https://form.jotform.com/220113340348341
• Services: the services supplied by Surf Turf to the Customer under this Agreement, including the Support Services, and where relevant any Installation Works and/or Custom Printing Services.
• Specification: any plans, descriptions, graphics, drawings or artwork produced by Surf Turf in respect of: (a) Custom Printing Services; and/or (b) the Bespoke Products.
• Support Services: Surf Turf’s after sales support services, which it offers in respect of the Products, as further described in the Documentation.
• Surf Turf Marks: any trade marks, trade names, logos or branding used by Surf Turf in relation to its Website, the Products and/or Services.
• Surf Turf Materials: has the meaning given in clause 1(g).
• Territory: the United Kingdom, unless the Customer is based in Europe, in which case it shall mean the UK and Europe.
• UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
• Warranty Period: has the meaning given in clause 1.
• Website: Surf Turf’s website https://surfturf.co.uk/, as updated from time to time.
  • Interpretation:
    • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
    • A reference to a party includes its personal representatives, successors and permitted assigns.
    • A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
    • Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
    • A reference to writing or written includes email but not fax.
    • In the event of any conflict or inconsistency between the documents making up this Agreement, the following order of precedence shall apply:
      • these Conditions;
      • the Installation Works Schedule;
      • an Order; and
      • the Specification and Design.

1. Basis of Agreement
   • Placing an Order constitutes an offer by You to purchase Products and/or Services from Surf Turf, in accordance with this Agreement.
   • The Order shall only be deemed to be accepted when Surf Turf issues written acceptance of the Order (through a confirmatory email) at which point and on which date the Agreement shall come into existence (Commencement Date).
   • This Agreement applies to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
   • Any quotation given by Surf Turf shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue

1. Delivery of Products
   • Surf Turf shall ensure that each delivery of the Products is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Surf Turf reference numbers, the type and quantity of the Products (including the code number of the Products, where applicable), Documentation, special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Products remaining to be delivered.
   • Surf Turf shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Surf Turf notifies the Customer that the Products are ready.
   • Delivery of the Products shall be completed on the completion of unloading of the Products at the Delivery Location. Any necessary Installation Works will be carried out immediately following delivery, at or near the Delivery Location, unless stated otherwise by Surf Turf. Unless Surf Turf expressly agrees to provide the Installation Works, the Customer shall be responsible for: (i) any necessary assembly, installation and erection of the Products, post-delivery; and (ii) removing all packaging relating to the Products.
   • Any dates quoted for delivery of the Products and providing of the Installation Works are approximate only, and the time of delivery is not of the essence. Surf Turf shall not be liable for any delay in delivery of the Products or performance of Installation Works that is caused by a Force Majeure Event, any failure by Surf Turf’s third party courier to deliver the Products within the quoted delivery date, or the Customer’s failure to provide Surf Turf with adequate delivery instructions or any other instructions that are relevant to the supply of the Products and Services, including failure to complete the Questionnaire accurately or sufficiently in advance of the intended delivery date.
   • Surf Turf shall have no liability for any failure to deliver the Products or failure to provide the Installation Works to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Surf Turf with adequate delivery instructions or any other instructions that are relevant to the supply of the Products and Services, including information in a Questionnaire. Customer acknowledges that in the event that the Customer fails on multiple occasions to take delivery of the Products, Surf Turf reserves the right in its discretion, to pass on to the Customer, any additional charges which Surf Turf incurs for storage and/or redelivery of such Products.
   • Surf Turf may deliver the Products by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
   • Where the Customer is based in an EU country, delivery shall be in accordance with the DAP INCOTERM® 2020 to the Delivery Location, or such other INCOTERM® agreed between the parties in writing.
2. Bespoke Products and Custom Printing Services
   • Where the Customer orders the Custom Printing Services and/or Bespoke Products, the following terms shall also apply:
     • the Customer shall, prior to placing the Order, provide Surf Turf with the required dimensions and descriptions for any Bespoke Products and/or Custom Printing Services;
     • the Customer shall, immediately following acceptance of an Order, provide Surf Turf with all relevant artwork, wording and Customer Marks relating to the Custom Printing Services and/or Bespoke Products;
     • Surf Turf shall, following acceptance of the Order, liaise with the Customer and shall produce and send to the Customer:
       • a digital image of the Bespoke Product, including a depiction of any text, graphics and/or Customer Marks displayed on it (“Design”); and
       • a Specification;
     • the Customer shall sign off on the Design and Specification and in particular will be responsible for checking the accurate and correct spelling of all wording to be displayed on banners or Products; and
     • correcting any errors in spelling will be at the Customer’s cost, unless Surf Turf is responsible for the spelling error.
   • The parties acknowledge that all artwork in respect of the Design is printed using CMYK colour space. If the Customer would like a particular colour and is aware of the Pantone reference or its CMYK colour split, the Customer is required to provide full details to Surf Turf. Whilst every effort is made to ensure the accuracy of the printing, Surf Turf cannot accept responsibility for colour differences between supplied files and printed results without the provision of a colour swatch test print (in respect of which additional lead times apply). Pantones and CMYK can differ depending on the printer and substrate used, and accordingly, Surf Turf cannot guarantee an exact colour match to another printed item, or previously ordered item.
   • All print colours shown on Surf Turf’s website, or on digital proofs provided are for layout reference only. Colours vary depending on monitor settings and if colour matching is required Surf Turf would suggest a colour swatch print.
3. Installation Works
   • Where the Customer confirms in the Questionnaire that it requires the Installation Works, these shall be performed by Surf Turf in accordance with the Installation Works Schedule.
4. Cancellation and Changes
   • The Customer acknowledges that, unless expressly agreed otherwise by Surf Turf in writing, no changes or cancellations are permitted in respect of Bespoke Products once the Customer has received the Order Confirmation.
   • Subject to clause 1, all changes or cancellations to Orders or Order Confirmations that are requested by the Customer must be sent by email to the following address: info@surfturf.co.uk.
   • Any changes or cancellations are subject to Surf Turf’s Returns and Refunds policy, available at: https://surfturf.co.uk/returns-refunds/
   • Surf Turf shall have no liability to the Customer in respect of any properly cancelled orders save for the prompt return of any monies already paid in respect of the relevant order, subject always to Surf Turf’s rights of set off under this Agreement.
5. Acceptance and defective items
   • The Customer may reject any defective Products delivered to it, in accordance with Surf Turf’s Returns and Refunds policy, available at: https://surfturf.co.uk/returns-refunds/. For business Customers, certain clauses below shall apply instead of the Returns and Refunds policy.

Business Customers only

• For business Customers, acceptance of the Products occurs upon either:
  • the Customer signing an acceptance sheet, provided by Surf Turf; or receiving the delivery
• Once the Products have been accepted by a business Customer pursuant to clause 7.2, there is no right to cancel the Products.
• Where the Customer (as a business Customer) subsequently sells the Products to its end customers, the Customer shall ensure that a copy of the Documentation is provided to each end customer (at, or immediately after, the time that the Products are sold or installed), and prior to concluding a sale involving the relevant Product(s), the Customer shall bring to the relevant end customer’s attention the end customer’s continuing responsibility to adhere to the maintenance guidelines contained in the Documentation.
• Where the Customer (as a business Customer) sells the Products to its end customers, Customer shall ensure that it puts in place a sales agreement with such end customer which is materially consistent with the terms of this Agreement (but which prohibits any further resale by such end customer). Such sales agreement (or the Customer’s terms and conditions of sale, as applicable) must also specify that any after-sales queries relating to returns, refunds or faulty/defective products must be raised with the Customer and not with Surf Turf. The Customer procures that any warranty claims in respect of the Products made by an end customer must be raised with Surf Turf through the Customer.  The Customer acknowledges that the warranties regarding the Products no longer apply if the Products are subsequently sold second hand to a third party.

All Customers

• Surf Turf offers a Support Service, accessible online or via telephone, between the hours of 9am-5pm on Working Days.

1. Warranties
   • Standard warranty. Surf Turf warrants that for a period of 12 months from the date of manufacture (Warranty Period), the Products shall:
     • conform in all material respects with their description in the Documentation and in the case of Bespoke Products, any applicable Specification;
     • be free from material defects in design, material and workmanship;
     • be of satisfactory quality (within the meaning of the Sale of Products Act 1979); and
     • be fit for any purpose held out by Surf Turf.

The above warranty does not cover damage caused to the Products by weather or misuse.

• Additional warranties. Surf Turf also reserves the right to offer additional warranties and extended Warranty Periods for certain Bespoke Products (including its Canopro Elite and Instashade Parasols), as set out in the Documentation.
• Subject to clause 4, if:
  • the Customer gives notice in writing to Surf Turf during the Warranty Period within a reasonable time of discovery that the relevant Product does not comply with the warranty set out in clause 1 and/or clause 8.2 where applicable;
  • Surf Turf is given a reasonable opportunity of examining such Products; and
  • the Customer (if asked to do so by Surf Turf) returns such Products to Surf Turf’s place of business at the Customer’s cost,

Surf Turf shall, at its option, repair or replace the defective Products (or relevant part thereof), or refund the price of the defective Products in full. If the Customer is a consumer, the above warranty is in addition to your legal rights as detailed in Surf Turf’s Returns and Refunds policy, available at https://surfturf.co.uk/returns-refunds/ and does not reduce or exclude them.

• Surf Turf shall not be liable for the Products’ failure to comply with the warranties set out in this clause 8 if:
  • the Customer makes any further use of such Products after giving notice in accordance with clause 3;
  • the defect arises because the Customer failed to follow Surf Turf’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products, or (if there are none) good trade practice regarding the same;
  • the Customer alters or repairs such Products without the prior written consent of Surf Turf;
  • the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
  • the Products differ from the Documentation or Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
• Except as provided in this clause 8 and Surf Turf’s Returns and Refunds policy, available at https://surfturf.co.uk/returns-refunds/, Surf Turf shall have no liability to the Customer in respect of the Products’ failure to comply with the warranties set out in clause 1 and/or clause 8.2.
• These Conditions shall apply to any repaired or replacement Products (or repaired/replacement parts) supplied by Surf Turf.

1. Title and risk
   • The risk in the Products shall pass to the Customer on completion of delivery (or where the Customer is based in the EU, in accordance with the DAP INCOTERM® 2020 or such other INCOTERM® agreed between the parties in writing).
   • Title to the Products shall not pass to the Customer until the earlier of:
     • Surf Turf receiving payment in full (in cash or cleared funds) for the Products; and
     • if the Customer is a business Customer, the Customer reselling the Products, in which case title to the Products shall pass to the Customer at the time specified in clause 4.
   • If the Customer is a business Customer, until title to the Products has passed to the Customer, the Customer shall:
     • store the Products separately from all other Products held by the Customer so that they remain readily identifiable as Surf Turf’s property;
     • not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
     • maintain the Products in satisfactory condition and keep them insured against all risks for their full price on Surf Turf’s behalf from the date of delivery; and
     • notify Surf Turf immediately if it becomes subject to any of the events listed in clause 2(b) to clause 18.2(d).
   • Subject to clause 5, if the Customer is a business Customer, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before Surf Turf receives payment for the Products. However, if the Customer resells the Products before that time:
     • it does so as principal and not as Surf Turf’s agent; and
     • title to the Products shall pass from Surf Turf to the Customer immediately before the time at which resale by the Customer occurs.
   • At any time before title to the Products passes to the Customer, Surf Turf may:
     • by notice in writing, terminate the Customer’s right under clause 4 to resell the Products or use them in the ordinary course of its business; and
     • require the Customer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.

1. Supply of Services
   • Surf Turf shall supply the Services to the Customer in accordance with:
     • the Installation Works Schedule (where applicable, as indicated in an Order); and
     • the Design, in all material respects.

• Surf Turf shall use reasonable endeavours to meet any performance dates for the Services specified in an Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
• Surf Turf reserves the right to amend the Installation Works Schedule and/or Design, as applicable, if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Surf Turf shall notify the Customer in any such event.
• Surf Turf warrants to the Customer that the Services will be provided using reasonable care and skill.

1. Customer’s obligations
   • The Customer shall:
     • complete and return the Questionnaire as soon as reasonably practicable following acceptance of the Order (and in any event within a reasonable period prior to installation and delivery);
     • ensure that the terms of the Order and any information it provides in the Questionnaire and/or in relation to a Design or Specification are complete and accurate;
     • co-operate with Surf Turf in all matters relating to the Services;
     • provide Surf Turf, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, water, gas and electricity, parking, office accommodation and other facilities as reasonably required by Surf Turf to deliver the Products and provide the Services;
     • provide Surf Turf with such information and materials as Surf Turf may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects – in particular, the exact location of the site for installation and details of any health and safety risks at the Delivery Location and Customer’s site (if different);
     • obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
     • comply with all applicable laws, including health and safety laws; and
     • keep all materials, equipment, documents and other property of Surf Turf (Surf Turf Materials) at the Customer’s premises in safe custody at its own risk, maintain Surf Turf Materials in good condition until returned to Surf Turf, and not dispose of or use Surf Turf Materials other than in accordance with Surf Turf’s written instructions or authorisation.
   • If Surf Turf’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, including where the Customer provides inaccurate information in the Questionnaire (Customer Default):
     • without limiting or affecting any other right or remedy available to it, Surf Turf shall have the right to suspend performance of the Services and/or delivery of the Products until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Surf Turf’s performance of any of its obligations;
     • Surf Turf shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Surf Turf’s failure or delay to perform any of its obligations as set out in this clause 2; and
     • the Customer shall reimburse Surf Turf on written demand for any costs or losses sustained or incurred by Surf Turf arising directly or indirectly from the Customer Default (including the cost of having to re-perform the Custom Printing Services due to the Customer’s spelling mistakes or other errors).
   • To the extent permitted by applicable law, the Customer shall indemnify Surf Turf, keep Surf Turf indemnified and hold it harmless against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Surf Turf arising out of or in connection with a failure by Customer to fulfil its obligations under this clause 11.
2. Charges and payment
   • The price for Products and Services shall be:
     • as set out in the Order;
     • inclusive of all costs and charges of packaging, insurance and transport of the Products; and
     • unless expressly stated otherwise by Surf Turf in writing, inclusive of any expenses reasonably incurred by the individuals whom Surf Turf engages in connection with the Installation Works including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Surf Turf for the performance of the Installation Works, and for the cost of any materials.
   • Surf Turf reserves the right to:
     • increase the price of the Products and/or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Products and Services to Surf Turf that is due to:
       • any factor beyond the control of Surf Turf (including foreign exchange fluctuations, increases in taxes and duties, shipping, and increases in labour, materials and other manufacturing costs);
       • any request by the Customer to change the delivery date(s), quantities or types of Products and/or Services ordered, or the Specification or Design; and/or
       • any delay caused by any instructions of the Customer in respect of the Products or Services or failure of the Customer to give Surf Turf adequate or accurate information or instructions in respect of the Products or Services, including inaccurate information provided in the Questionnaire.
     • Unless expressly agreed otherwise by Surf Turf in writing, in respect of the Products and Services, Surf Turf shall invoice the Customer (via email) on or at any time after issuing the Order Confirmation.
     • The Customer shall pay each invoice submitted by Surf Turf:
       • within 30 days of the date of the invoice; and
       • in full and in cleared funds to a bank account nominated in writing by Surf Turf, and time for payment shall be of the essence of the Agreement.

• All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by Surf Turf to the Customer, the Customer shall, on receipt of a valid VAT invoice from Surf Turf, pay to Surf Turf such additional amounts in respect of VAT as are chargeable on the supply of the Services or Products at the same time as payment is due for the supply of the Services or Products.
• If the Customer fails to make a payment due to Surf Turf under the Agreement by the due date, then, without limiting Surf Turf’s other rights and remedies, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
• All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

1. Intellectual property rights
   • All Intellectual Property Rights in or arising out of or in connection with the Products and Services, including those in the Surf Turf Marks, the Specification, Documentation and Design (other than Intellectual Property Rights in any Customer Materials or Customer Marks) shall be owned by Surf Turf or its licensors.
   • The Customer grants Surf Turf a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any Customer Materials for the purpose of providing the Services to the Customer.
2. Customer Marks
   • The Customer hereby grants to Surf Turf a non-exclusive, irrevocable, royalty free, transferable licence to use the Customer Marks on or in relation to the Products, in the Territory, subject to the provisions of this Agreement.
   • Any goodwill derived from the use by Surf Turf of the Customer Marks from the Commencement Date onwards accrues to the Customer.
   • Nothing in this Agreement or otherwise shall prevent Surf Turf from using any Surf Turf Marks on the Products or using other trade marks, trade names and branding (including its own trade marks and trade name) on the Products or on packaging, advertising and promotional materials for the Products.
   • The Customer hereby warrants, represents and undertakes that:
     • it is the sole legal and beneficial owner of, and owns all the rights and interests in, the Customer Marks;
     • it has not assigned the Customer Marks to any third party in the Territory;
     • the Customer Marks are free from any security interest, option, mortgage, charge or lien;
     • it is unaware of any infringement or likely infringement of the Customer Marks;
     • the Customer Marks are valid and subsisting and there are and have been no claims, challenges, disputes or proceedings, pending or threatened, in relation to the ownership, validity or use of the Customer Marks; and
     • Surf Turf’s use of the Customer Mark will not infringe the Intellectual Property Rights of any third party.
   • To the extent permitted by applicable law, the Customer shall at all times during and after the term of this Agreement, on written demand, indemnify Surf Turf and hold Surf Turf harmless, against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Surf Turf arising out of or in connection with any breach of the warranties contained in clause 4 and Surf Turf’s use of the Customer Marks.
3. Data protection
   • The following definitions apply in this clause 15:
     • Controller, Personal Data, processing: each have the meaning as defined in the Data Protection Legislation; and
     • Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
   • The parties acknowledge that Surf Turf will, as part of performing its obligations under this Agreement, be required to collect certain Personal Data of the Customer, including name, email address, phone number, password for registering for your account, and address.
   • Surf Turf shall collect, use and Process such Personal Data in its capacity as a Controller and shall do so in accordance with the Data Protection Legislation and the terms set out in its privacy policy, available at: https://surfturf.co.uk/privacy-policy/.
4. Confidentiality
   • Each party undertakes that it shall not at any time during the Agreement, and for a period of two years after termination or expiry of the Agreement, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party except as permitted by clause 2.
   • Each party may disclose the other party’s confidential information:
     • to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 16; and
     • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
   • No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
   • Nothing in this clause 16 shall prevent the party receiving confidential information from using any techniques, ideas or know-how gained during the performance of the Agreement in the course of its normal business to the extent that this use does not result in a disclosure of the disclosing party’s confidential information or an infringement of its Intellectual Property Rights.
5. Limitation of liability
   • Nothing in the Agreement limits or excludes any liability which cannot legally be limited, including liability for:
     • death or personal injury caused by negligence;
     • fraud or fraudulent misrepresentation;
     • breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
     • defective products under the Consumer Protection Act 1987.
   • Subject to clause 1, neither party shall under any circumstances whatsoever be liable to the other party, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, for any:
     • loss of profits (whether direct or indirect);
     • loss of sales or business (whether direct or indirect);
     • loss of agreements or contracts (whether direct or indirect);
     • loss of anticipated savings (whether direct or indirect);
     • loss of use or corruption of software, data or information (whether direct or indirect);
     • loss of or damage to goodwill (whether direct or indirect); and
     • indirect or consequential loss.
   • Subject to clause 1, Surf Turf’s total liability to the Customer in respect of:
     • damage to property shall not exceed £1,000,000 (one million pounds) in aggregate; and
     • any other liability arising out of or relating to the Products and/or Services shall not exceed the total value of the relevant Order.
   • Surf Turf has given commitments as to compliance of the Products and Services with relevant Specification in clause 4 and clause 10. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement.
   • This clause 17 shall survive termination or expiry of the Agreement, howsoever arising.
6. Term and Termination
   • This Agreement shall take effect on the Commencement Date and shall, unless terminated earlier in accordance with its terms, continue for a period of 12 months after delivery of the Products, following which it shall expire automatically and without the requirement for either Party to give notice.
   • Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
     • the other party commits a material breach of its obligations under the Agreement and (if such breach is remediable) fails to remedy that breach within 20 days after receipt of notice in writing to do so;
     • the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
     • the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
     • the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy.
   • Without affecting any other right or remedy available to it, Surf Turf may suspend the supply of Services and/or all deliveries of Products under the Agreement and terminate the Agreement, if: (i) the Customer fails to pay any amount due under the Agreement on the due date for payment; (ii) the Customer becomes subject to any of the events listed in clause 2(b) to clause 18.2(d); or (iii) Surf Turf reasonably believes that the Customer is about to become subject to any of them.
7. Consequences of termination
   • On termination or expiry of the Agreement:
     • the Customer shall immediately pay to Surf Turf all of Surf Turf’s outstanding unpaid invoices and interest and, in respect of Services and Products supplied but for which no invoice has been submitted, Surf Turf shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
     • the Customer shall return all of Surf Turf Materials and any Products which have not been fully paid for. If the Customer fails to do so, then Surf Turf may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement.
   • Termination or expiry of the Agreement shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
   • Any provision of the Agreement that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
8. Force majeure

Save for any payment obligations, neither party shall be in breach of the Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Agreement by giving 30 days’ written notice to the affected party.

1. General
   • Assignment and other dealings
     • Surf Turf may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.
     • The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of Surf Turf.
     • Any notice given to a party under or in connection with the Agreement shall be in writing and shall be:
       • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
       • sent by email to the following addresses (or an address substituted in writing by the party to be served):

Surf Turf: info@surfturf.co.uk;

Customer: the email address set out in an Order.

• Any notice shall be deemed to have been received:
  • if delivered by hand, at the time the notice is left at the proper address;
  • if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting; or
  • if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
• This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

• If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement. If any provision or part provision of the Agreement is deemed deleted under this clause 21.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
  • A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  • A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
• No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
• Entire agreement.
  • The Agreement constitutes the entire agreement between the parties.
  • Each party acknowledges that in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement.
• Third party rights. The Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 for any third party to enforce any term of the Agreement.
• Except as set out in these Conditions, no variation of the Agreement shall be effective unless it is agreed in writing by the parties.
• Governing law. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
• Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.

Schedule 1

Installation Works

1. DEFINITIONS AND INTERPRETATION
   • For the purposes of this schedule, unless the context otherwise requires, the words or expressions that begin with capital letters shall have the precise meanings as set out below, all other terms used and not defined in this schedule shall have the meaning ascribed to them in the main Conditions:
     • ‘CDM Regulations’ means the Construction (Design & Management) Regulations 2015 and any approved Code of Practice published by the Health and Safety Executive in relation to such regulations or any subsequent amendment or replacement thereto;
     • ‘Completion’ means a state when the Installation Works are complete in all respects save for minor defects the existence completion or rectification of which in the reasonable opinion of Surf Turf would not prevent or unreasonably interfere with the use of the Project;
     • ‘Date of Completion’ means the date specified in the Order;
     • ‘Defects’ means all and any defects, shrinkages, and other faults in the Installation Works or any part of them which is due to materials or workmanship not being in accordance with the Specification;
     • ‘Installation Price’ means the amount indicated in the Order to be paid to Surf Turf for carrying out and completing the Installation Works;
     • ‘Installation Works Specification’ means the documents (including any variations, additions or omissions thereto) referred to in the Order or attached or referred to in the Agreement, which describe the nature and scope of the Installation Works and which has been prepared by the Customer;
     • ‘Project’ means the Installation Works at the Site as more particularly described in the Order and the Agreement;
     • ‘Rectification Period’ means the period which starts on the date of Completion of the Installation Works and ends three (3) months thereafter;
     • ‘Requisite Consents’ means any and all relevant permissions, consents, approvals, licences, certificates and permits as may be lawfully required in order to commence, carry out, maintain and complete the Installation Works and use the Project and which term includes but is not limited to any modification, variation or amendment to any relevant Requisite Consent;
     • ‘Site’ means the location of the Installation Works as described in the Order or the Agreement; and
     • ‘Variation’ means a variation, modification, omission, addition or other alteration in the nature or scope of the Installation Works.

1. OBLIGATIONS OF Surf Turf
   • Surf Turf shall for the price carry out and complete the Installation Works. It shall commence the Installation Works within a reasonable period following receipt of notice to do so.
   • All work carried out by Surf Turf in connection with the Installation Works must be carried out in a good and workmanlike manner.
   • The Installation Works shall be carried out and completed in accordance with good building and industry practice and the Installation Works Specification.
   • Nothing in the Agreement shall impose an obligation on Surf Turf to undertake or be responsible for any design in the Project.
2. CUSTOMER’S RESPONSIBILITIES
   • Where applicable, the Customer shall provide Surf Turf with any documents and obtain any Requisite Consents or approvals in respect of the Installation Works.

3.2          All design will be undertaken by the Customer and shall be included in the Installation Works Specification.

1. MATERIALS
   • Surf Turf shall use reasonable endeavours not specify for use or permit to be used in the Installation Works any goods or materials generally known in the construction industry to be deleterious to health and safety in the particular circumstances in which they are used or which by their nature or application contravene any British or EU Standard or Code of Practice current at the date of use of such goods or materials.
2. SITE ACCESS AND CONDITIONS
   • The Customer shall ensure that Surf Turf is granted all access to the Site as is necessary to allow it to carry out and complete the Installation Works and rectify any Defects in accordance with the Agreement.
   • In the event Surf Turf encounters adverse conditions or naturally occurring or artificial obstructions during the course of executing the Installation Works, the Customer shall issue a Variation in accordance with these Conditions.
3. RUBBISH/HEALTH & SAFETY AT WORK
   • Where applicable, Surf Turf shall use reasonable endeavours to ensure that the requirements of the Customer’s health and safety policies (to the extent copies of such policies have been provided by the Customer to Surf Turf) are complied with in so far as it is reasonable for Surf Turf to so comply.
   • Surf Turf shall not be responsible for the disposing of any waste generated by the carrying out of the Installation Works and shall not be responsible for any mud, debris or other material generated by the carrying out of the Installation Works.
4. INSURANCE
   • Surf Turf shall maintain such insurance policies as are necessary to cover its liability in connection with the Installation Works.
5. OWNERSHIP AND RISK
   • Surf Turf shall take all reasonable steps to ensure that the carrying out of the Installation Works (or the remedying of any Defects) does not interfere with, damage or destroy (in whole or in part) any existing buildings, structures or services on, under or around the Site.
6. COMPLETION
   • Surf Turf shall give at least one (1) Business Days’ notice to the Customer of the date on which Surf Turf believes that the Installation Works will achieve Completion so that the Customer may inspect the works and consider whether they have been completed in accordance with the Agreement.
   • If following an inspection made pursuant to paragraph 9.1 the Customer considers, acting reasonably, that the Installation Works have not been completed, Surf Turf shall give not less than one (1) Business Days’ notice of the date on which it intends to carry out a further inspection with a view to confirming Completion.
7. DEFECTS
   • During the Rectification Period any Defects shall be rectified by Surf Turf within a reasonable period of time.

1. EXTENSIONS OF TIME and Loss and expense
   • Surf Turf shall use reasonable endeavours to complete the Installation Works by the Date of Completion provided always that if there shall be any delay or disruption in the commencement, regular progress or completion of the Installation Works by any cause, reason or event whatsoever beyond the reasonable control of Surf Turf or (without prejudice to the foregoing) any of the following:
     • unusually adverse weather conditions;
     • adverse ground or site conditions or unforeseen obstructions within the Site or around the Site;
     • labour lock-outs, strike and other industrial disputes;
     • any breach by the Customer of any obligation on its part under the Agreement or unreasonable delay by the Customer in granting approval or providing the Requisite Consents or any impediment, prevention or default by the Customer or anyone for whom it is responsible, whether by act or omission or default;
     • any Variation which causes delay or disruption in the commencement, regular progress or completion of the Installation Works;
     • any requirement of any statutory undertaker or other authority which may affect the Installation Works;
     • non-availability or lack of availability of plant, equipment, labour, goods or materials as are essential to the regular progress or completion of the Installation Works or any part of them;
     • delay caused by the carrying out by a local authority or statutory undertaker of work in pursuance of its statutory obligations in relation to the Installation Works, or the failure to carry out such work;
     • Force Majeure Event;
     • war, revolution, riot, insurrection, civil disorder, civil commotion, demonstration, protest or sabotage;
     • acts of vandalism or accidental damage or destruction to the Installation Works or any part of them or to machinery or equipment being used or to be used in connection with the Installation Works;
     • any restriction or interruption to Surf Turf’s access to and from the Site or any part or it;
     • any risk or danger to health and safety or any disease (whether pandemic or epidemic) which affects the preparation for or execution of the Installation Works and/or the taking of any measures to prevent, delay, reduce or otherwise mitigate its spread and/or its effects; or
     • the exercise after the date of the Agreement by the United Kingdom Government or any Local or Public Authority of any statutory power which affects the execution of the Installation Works, then the Customer shall grant Surf Turf an extension of time by fixing such later date as the Date of Completion as shall be agreed between the parties or failing agreement such period of time as shall be fair and reasonable in all the circumstances.

• The Customer will reimburse any costs and losses that Surf Turf has incurred or suffered as a consequence of:
  • a breach of the Customer’s obligations under the Agreement;
  • any impediment, prevention or default by the Customer or anyone for whom it is responsible, whether by act or omission or default; or
  • any Variation, and such costs and losses shall be valued by agreement between the Customer and Surf Turf or, if they fail to agree, in accordance with the rates and prices in the Agreement or (if no applicable rates and prices exist) such prices as shall be fair and reasonable in the circumstances and shall be added to the Installation Price.

1. VARIATIONS
   • The Customer may require a Variation without vitiating the Agreement.
2. PAYMENT
   • The Customer will pay to Surf Turf the Installation Price or such other sum or sums as shall become payable pursuant to the Conditions at the times and in the manner specified in the Conditions.
3. CDM REGULATIONS
   • Surf Turf undertakes that it has complied with and will continue to comply with its statutory duties under the CDM Regulations in relation to the Project.
   • Surf Turf warrants that:
     • adequate resources have been allocated by Surf Turf or, as appropriate, will be allocated by Surf Turf to enable Surf Turf to comply with its statutory duties under the CDM Regulations; and
     • Surf Turf has and shall continue to have the competence required by the CDM Regulations to prepare any design (as defined in the CDM Regulations) which it has prepared or will prepare as part of the Installation Works.
   • Surf Turf shall:
     • provide information relating to health and safety as may reasonably be required by any third party involved in the Project;
     • liaise and co-operate with any design team, contractors, consultants, and any other contractors or persons involved in the Project to enable all parties to comply with their statutory duties under the CDM Regulations; and
     • provide such information as the Principal Designer (the identity of whom shall be confirmed by the Customer to Surf Turf) may require to enable the Principal Designer to compile the health and safety file for the Project pursuant to the CDM Regulations.
   • Surf Turf shall provide, if requested by the Customer in writing, such details and information as the Customer may reasonably require to satisfy itself that Surf Turf is complying with its statutory duties under the CDM Regulations and the warranties given in this paragraph 14.

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